73 Ind. App. 551 | Ind. Ct. App. | 1920
Statement by
This action was instituted by appellant against the appellees. It appears from the first paragraph of complaint that in January, 1906, the defendants, George H. Johnson and his wife, Anna Johnson, were aged, in need of care and assistance, and resided on a farm owned by Mr. Johnson. The farm had been neglected, was in a bad state of repair and cultivation, and yielded but little income. The Johnsons desired to live on the farm the remainder of their days, and, because of their advanced age, they were anxious to have some one live on the farm with them and give them such care and attention as they needed in their declining years. Humphrey’s'wife was the daughter of the defendants. The defendants entered into an oral contract with Humphrey, by the terms of which it was agreed that Humphrey and his wife should live with the defendants and improve the farm, and as compensation for their services the defendants would execute the necessary papers to convey the farm to Humphrey and his wife jointly.
Pursuant to the agreement Humphrey and his wife went upon the farm,, made improvements thereon, nursed and cared for the defendants until December 12, 1912, at which time Humphrey’s wife died. After her death he continued to reside with the defendants on the farm and to discharge his duties under the contract. In October, 1915, with the consent and at the request of the defendants, he remarried, and brought his second wife into the home to assist in caring for the defendants, under another oral agreement that the original
The amended second paragraph of complaint seeks to recover the value of the same services rendered, work done, and improvements made, but contains no reference to the oral contract nor to any promise to pay therefor.
Answer in denial and plea of payment. Verdict and judgment for the defendants.
The following is a portion of the tenth instruction:. “Before the plaintiff can recover any sum in this action he must show by a fair preponderance of the evidence, first, that such an agreement’was made; second, that relying upon said agreement, he, or his said wife, or both of them, performed services for defendants not required under his lease, and that said contract and agreement to execute papers by which he and his wife were to become the owners of the said farm after the death of defendants, has been repudiated by them without his consent, and that he at all times was ready and willing to perform his part of said contract.”
It is conceded that by this action appellant is not seeking specific performance of the parol contract averred in the complaint, nor damages for a breach thereof; but that he is seeking to recover the value of the services rendered, the work done, and the improvements made.
presumption that the services were rendered gratuitously. Flowers v. Poorman (1909), 43 Ind. App. 528, 87 N. E. 1107; Schoonover v. Vachon (1889), 121 Ind. 3, 22 N. E. 777.
Appellant’s right to recover on the basis of the value of the services rendered, work done, and improvements made, does not depend on his willingness and readiness fully to perform the contract. The tenth instruction violates this principle, and the effect of it is to make nonfulfillment of the contract by him available to the appellee as a bar to his action.
As to some features of the case the evidence is conflicting; but that part thereof which is most favorable to the appellant tends to support all the material averments of his complaint, and he may have been deprived of a recovery by the tenth instruction alone. It affirmatively appears that the instruction is harmful.
When all the evidence has been considered, it becomes apparent that in- the interest of fairness the appellant should have the right to amend his complaint.
The judgment is reversed, and the trial court is directed to grant a new trial and to permit the pleadings to be amended, if desired.
